Cullman Electric Cooperative

CULLMAN ELECTRIC COOPERATIVE 753 'CULLMAN ELECTRIC COOPERATIVE and LOCAL UNION 558, INTERNA- TIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL. Case, No. 10=CA-1115. June 1 7, 1959 Decision and Order On November 14, 1951, Trial Examiner Isadore Greenberg issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices in violation of Section 8 (a) (1) and (3) of the National Labor Relations Act, and recommending that the Respondent cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. The Trial ll miner also found that the Respondent had not violated the Act with respect to Lawson Taylor and consequently recommended dis- missal of the complaint as to him. Thereafter, both the Respondent and the General Counsel filed exceptions to the Intermediate Report, and also supporting briefs. The Board has reviewed the rulings of the Trial Examiner at the hearing and finds that no prejudicial errors were committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions, the briefs, and the entire record in this ease, and hereby adopts the findings, conclusions, and recommen- dations of the Trial Examiner with the additions set forth below. 1. The Respondent contests the Board's jurisdiction, contending that its activities do not affect commerce within the meaning of the Act. In agreement with the Trial Examiner, we find that the Respond- ent is engaged in commerce within the meaning of the Act, and that it would effectuate the policies of the Act to assert jurisdiction in this case.1 2. The Trial Examiner found, and we agree, that the Respondent interfered with, restrained, and coerced its employees in violation of Section 8 (a) (1) of the Act. In reaching this conclusion, we rely on the following conduct : (1) Superintendent Johnson's interrogation of employee Estes as to whether the latter had signed a union application card, how many other employees had signed such cards, and who had attended the meetings of the Union; (2) Superintendent Johnson's interrogation of employee Nunnelly as to Nunnelly's attitude toward the Union; (3) Manager Wood's warning while making an antiunion speech that the Respondent had the power to discharge any employee "for the way he parted his hair"-a thinly veiled threat that any employee who supported the Union might be discharged on any con- venient pretext; (4) conducting a private poll among the employees by 1 Black River Electric Cooperative, 98 NLRB 539. 99 NLRB No. 97. 754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD instructing the employees who wished to repudiate the Union to rise and those who wished to be represented by the Union to remain seated ; (5) Superintendent Johnson's statement to employee Taylor imme- diately following the Board election that Taylor might as well start looking for another job, which statement was made immediately after Johnson's unsuccessful attempt to induce Taylor to renounce his union activities; (6) Manager Wood's surveillance at the scene of the Union's scheduled meeting of August 28, 1950; 2 (7) prohibiting employees during nonworking time from inquiring of a union representative as the outcome of his meeting with Manager Wood concerning union recognition; 3 and (8) promulgating and enforcing its rule against discussion of unionism during working hours for the discriminatory purpose of impeding the Union's organizing efforts.4 3. In view of the Trial Examiner's credibility resolutions, which we see no reason to disturb, we find that Respondent did not discharge Lawson Taylor in violation of Section 8 (a) (3) of the Act. 4. For the reasons fully detailed in the Intermediate Report, we find, in agreement with the Trial Examiner, that the Respondent dis- charged Elbert O. Estes in violation of Section 8 (a) (3) and (1) of the Act. Order Upon the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Cullman Electric Cooperative, Cullman, Alabama, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in Local Union 558, International Brotherhood of Electrical Workers, AFL, or any other labor organi- zation of its employees, by discriminatorily discharging any of them or by discriminating in any other manner in regard to their hire or tenure of employment, or any term or condition of employment because of their union membership, activity, or adherence. (b) Interrogating its employees concerning their union activities or views; threatening its employees with economic reprisal for sup- porting the Union; polling its employees as to whether or not they wish to be represented by a union; engaging in surveillance of union meet- 2 Although 'se agree with the Trial Examiner's finding that Wood's attendance at the first union meeting did not constitute surveillance , we do so on the basis of the undisputed evidence that Wood was invited by several employees to attend the meeting and was per- mitted to remain in attendance without objection , and not for the additional reason given by the Trial Examiner that the meeting was devoted only to a general discussion of the history and rights of labor by the Union 's attorneys. 31. F. Sales Company, 82 NLRB 137. 4 Standard-Coosa-Thatcher Company, 85 NLRB 1358 ; Cherry Rivet Company, 97 NLRB 1303. CULLMAN ELECTRIC COOPERATIVE 755 ings, and in any other manner interfering with, restraining, or coercing its employees in the exercise of the rights to self-organization, to form labor organizations, to join or assist Local Union 558, Inter- national Brotherhood of Electrical Workers, AFL, or any other labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8 (a) (3)' of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to Elbert O. Estes immediate and full reinstatement to his former or a substantially equivalent position without prejudice to his seniority or other rights and privileges. (b) Make whole said Elbert O. Estes in the manner set forth in the section of the Intermediate Report entitled "The Remedy" for any loss of pay he may have suffered by reason of Respondent's discrimi- nation against him. (c). Upon request, make available to the Board or its agents, for examination and'copying, all payroll records, social security payment records, time cards, personnel records and reports, and all other records necessary to analyze the amounts of back pay and the right of rein- statement under the terms recommended in this order. (d) Post immediately at its place of business at Cullman, Alabama, copies of the notice attached hereto, marked "Appendix A." s Copies of said notice, to be furnished by the Regional Director for the Tenth Region, shall after being duly signed by the Respondent's representa- tive, be posted by the Respondent immediately upon receipt thereof, and maintained by it for sixty (60) days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for the Tenth Region in writing, within ten (10) days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint, insofar as it alleges that the Respondent discrimnlatorily discharged Lawson Taylor in viola- tion of Section 8 (a) (3) of the Act, be, and it hereby is, dismissed. $ In the event that this Ouler is enforced by a decree of the United States Court of Appeals. there shall he substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a 1) erne of the United States Court of Appeals. Enforcing an Oider " 756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Appendix A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL NOT discourage membership in LOCAL UNION 55S, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL, or in any other labor organization of our employees, by discharging any of our employees or in any other manner discriminating against them in regard to their hire and tenure of employment or any term or condition of employment. WE WILL NOT interrogate our employees concerning their mem- bership in or adherence to LOCAL UNION 558, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL, or any other labor organization, or threaten reprisals for such membership or adherence. WE WILL NOT keep any union meetings of our employees, or any of their other concerted activities, under surveillance. WE WILL NOT conduct any polls or elections among our em- ployees on the question of whether or not they wish to be repre- sented in collective bargaining by a union. , WE WILL NOT promulgate or enforce any rules prohibiting our employees from engaging in discussions of unions on our premises or during working hours, except insofar as such rules may be reasonably necessary to avoid disruptions of our operations. WE WILL NOT in any manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist LOCAL UNION 558, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or -to refrain from any or all of such activities, except to the extent that such right may be affected by an agree- ment requiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. WE WILL offer to ELBERT O. ESTES immediate and full rein- statement to his former or a substantially equivalent position, without prejudice to any seniority or other rights and privileges previously enjoyed, and make him whole for any loss of pay suffered as a result of the discrimination. All our employees are free to become or remain or refrain from becoming members of the above-named union or any other labor CULLMAN ELECTRIC COOPERATIVE 757 organization except to the extent that this right maybe affected by an agreement in conformity with,Section 8 (a),, (3) of the, amended Act. We will not discriminate in regard to hire or tenure of employment or any term or condition of employment against any employee because of membership in or activity on behalf of any such labor organization. CULLMAN ELECTRIC COOPERATIVE, Employer. Dated ------------ By ----------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. Intermediate Report and Recommended Order STATEMENT OF THE CASE Upon a charge and amended charge duly filed by Local Union 558, Interna- tional Brotherhood of Electrical Workers, herein called the Union, the General Counsel of the National Labor Relations Board,' by the Regional Director for the Tenth Region (Atlanta, Georgia), issued a complaint on June 14, 1951, against Cullman Electric Cooperative, herein called the Respondent, alleging that the Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (a) (1) and (3) and Section 2 (6) and (7) of the Labor Management Relations Act, 1947 (Public Law 101, 80th Congress; 61 Stat. 136), herein called the Act. Copies of the charge, amended charge, the complaint, and notice of hearing thereon were duly served upon the Respondent and the Union. With respect to unfair labor practices the compaint, as amended at the hear- ing, alleges in substance that the Respondent on specified dates during June and August 1950, interrogated its employees concerning their union activities and affiliations, threatened to discharge employees if they joined or assisted the Union, and engaged in surveillance of the organizational activities of its employees. It further alleges that on September 6, 1950, the Respondent dis- charged employees E. 0. Estes and L. A. Taylor because of their membership in and activities on behalf of the Union, and has thereafter refused to reinstate them. In its answer, duly filed, the Respondent denies that it is engaged in business activities which affect commerce within the meaning of the Act, and denies the commission of any unfair labor practices. Pursuant to notice, a hearing was held at Cullman, Alabama, on July 17 and 18, 1951, before the undersigned Trial Examiner, duly designated by the Chief Trial Examiner of the Board. The General Counsel, the Respondent, and the Union were represented by counsel ; the Union also by a lay representative. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. At the close of the hearing a motion by the General Counsel to conform the pleadings to the proof with respect to such formal matters as the spelling of names, dates, and the like, was granted without objection. Before the close of the hearing counsel for all the parties were heard in oral argument. Opportunity was afforded all parties to file with the Trial Examiner, briefs and/or proposed findings of fact, ' The General Counsel and his representative at the hearing are herein referred to as the General Counsel ; the National Labor Relations Board as the Board. 215233-53-49 758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and conclusions of law. A brief was received from counsel for the Respondent. In its brief, Respondent moves for a dismissal of the complaint. This motion is disposed of by the findings, conclusions, and recommendations hereinafter made. Upon the entire record in the case, and from my observation of the witnesses, I make the following : FINDINGS OF FACT 1. THE RESPONDENT'S BUSINESS The Respondent, Cullman Electric Cooperative, is a nonprofit electric coopqra- tive, existing by virtue of and under chapter 3, title 18, Code of Alabama of 1940, having its principal office and place of business at Cullman, Alabama, where it is engaged in the business of buying, selling, and distributing electric service for its approximately 10,000 customer-members in Cullman, Winston, Lawrence, and Morgan Counties in the State of Alabama. It is financed by loans from the Rural Electrification Administration. During the calendar year 1950, in the course and conduct of its business, the Respondent purchased materials and supplies consisting principally of electricity, wire, transformers, glass, poles, and meters, of a total value of approximately $193,000, of which approximately $22,000 represents the value of purchases made outside the State of Alabama During the same period, the Respondent sold more than 17,400,000 kilowatt hours of electricity to its consumer-members, valued at in excess of $460,000 all of which sales were made within the State of Alabama. The Respondent is not required to sell its electricity nor to extend its other services to consumers it does not wish to serve, and its sales are made almost exclusively to members of the cooperative, for whom it is the sole source of electric power. About 94 percent of the Respondent's members is farmers ; about 85 percent of the electric power sold by the Respondent is sold to such rural members. Among the Respondent's other customers are a number of industrial establishments, such as sawmills, cotton gins, and the like, and at least one municipality, which purchases electricity for use by some of its municipal departments. The record does not reveal what proportion of the Respondent's sales are made to such customers, nor does it describe the extent or nature of the latter's business operations. The Respondent contends that the Board does not have jurisdiction over this matter because: (1) There is no showing that the Respondent's business opera- tions substantially affect interstate commerce; and (2) the Respondent is not a "public utility" in the sense of being obligated to make its services available to any member of the public demanding such services. It argues further that the Respondent purchases its electric power from TVA, a Government-owned enterprise, instead of from a public utility company, and consequently, is not even "connected with any public utility." Although in an earlier case cited by the Respondent, the Board, by a divided decision, held that it would not effectuate the policies of the Act to assert juris- diction over a nonprofit rural electric cooperative similar to the Respondent (Platte-Clay Electric Cooperative, Inc., 83 NLRB 863), it has more recently ad- hered to the policy of taking jurisdiction over such enterprises, which, in the view of the Board, should "be treated as a public utility" for purposes of decid- ing jurisdictional issues Cherokee County Rural Electric Cooperative Associa- tion, 92 NLRB 1181; Buckeye Rural Electric Cooperative, Inc., 88 NLRB 196; Wheatland Electric Cooperative, Inc., 94 NLRB 109; Appalachian Electric Co- operative, 93 NLRB 1278.2 2 The cooperative involved in the Appalachian case, cited above, purchased its, electricity from TVA. CULLMAN ELECTRIC COOPERATIVE' - • • 759 I conclude and find that the Respondent is engaged - in commerce within the meaning of the Act, and that it falls within the class of enterprises over which the Board, as a matter of policy, asserts its jurisdiction. II. THE LABOR ORGANIZATION INVOLVED Local Union 558, International Brotherhood of Electrical Workers, affiliated with the American Federation of Labor, is a labor organization admitting em- ployees of the Respondent to membership. III. TIDE UNFAIR LABOR PRACTICES A. Sequence of events' During or prior to May 1950, information reached the Respondent that the employees of some electrical cooperatives in northern Alabama had organized- into unions, and that collective bargaining agreements had been negotiated between the said unions and employers. Sometime thereafter, during the month of May, Manager Claude Wood called the Respondent's employees to a meeting on the Respondent's premises and addressed them on the subject of union organi- zation Wood told the emplo} ees that there had been some union activity among the employees of other electrical cooperatives in Alabama, and that efforts might be made to organize the Respondent's employees. He expressed the view that no union was needed by the Respondent's employees, and the hope that they would not attempt to bring one in. After pointing out the disadvantages of unions, Wood announced it rule prohibiting the discussion of union matters by the emplo} ees during working hours, under penalty of discharge.' Shortly before the aforesaid meeting, during May 1950, employee Lawson Taylor bad requested the American Federation of Labor'to help him organize the Respondent's employees. The matter was referred, to Business Manager Charles S. Goidel of the Union, as a result of which Goidel met during 'the month of June with some of the Respondent's employees, including Taylor and Elbert O. Estes, for a preliminary discussion. In the latter part of June, a larger group of the Respondent's employees met at or near a picnic ground in Cullman, where some of them signed union appli ' cation cards, and arrangements were made for another meeting at which addi tional employees were to be present. At the next meeting,' held shortly after- wards at the same site, those present decided that they had enlisted a majority of the Respondent's employees in the Union, and that Goidel, as their repre- sentative, should call on the Respondent to request recognition of the Union. Pursuant to the aforesaid decision, Goidel visited Manager Claude Wood at the latter's office on or about Monday, June 26, 1950, informed him that the Union represented a majority of the employees, offered to submit signed application cards to prove this claim, and requested that the Respondent recognize the Union as collective bargaining representative of the employees. Wood declined to ex- amine the cards and replied that he had no authority to grant the Union's request, but said that he would take the matter up with the Respondent's board of directors and would notify Goidel as to the Board's decision.' 7 Unless otherwise indicated, the findings of fact made herein are based upon undisputed evidence. + Based on the composite testimony of Lawson Taylor, Manager Wood; E. O. Estes, R M: Vei3t, Odie Q Johnson, and Doyle Wilhite, and a reconciliation thereof. • ' 5 Both of the meetings held at the picnic ground were advertised by employee Lawson Taylor by posting a notice on the bulletin board of the Respondent's warehouse. U Based on the testimony of Goidel and Wood, which is in substantial agreement as to what occurred on the above-described occasion. 766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On the afternoon of the same day, Goidel returned to a point near the Re- spondent's premises, parked his car nearby, and waited for the employees to return from their work in the field, in order to notify them of the result of his meeting with Wood. At approximately 4: 30 that afternoon some of the Re- spondent's trucks began to come into the Respondent's yard carrying employees returning from their work.' A number of these employees carne to Goidel to ask him what had occurred during his visit to Wood. When Goidel began to tell the employees about his conversation with Wood, the latter approached the group and ordered the employees to return to the Respondent's premises, remarking that he could discharge everyone of them for talking to Goidel during working hours! On the day during which the above-described incident occurred, or the day following, Superintendent of Operations James W. Johnson asked employee Estes how many of the Respondent's employees had signed union application .cards. When Estes refused to give him this information, Johnson asked, "Well, you signed, didn't you?" Estes answered, "Yes, sir, I signed one and I don't .care if you know it." Johnson then persisted, saying, "Well, I want to know -how many signed." Estes still refused to answer that question, whereupon .Johnson asked Estes why he wished to affiliate with the Union! At about the same time, Superintendent Johnson also interrogated employee Willie Roy Nun- nelly about the Union while they were at work, asking what Nunnelly thought about the Union. Nunnelly called Johnson's attention to the rule against dis- cussing the Union during working hours and declined to answer his question 10 About a day or two after June 26, the Respondent's employees were assembled at a meeting in the director's room of the Respondent's offices and were ad- dressed on the subject of the Union's organizational campaign by Manager Wood and Superintendent of Operations Johnson. Both Wood and Johnson urged the employees to refrain from supporting the Union, and compared the Respondent's working conditions with those prevailing under union agreements, to the disadvantage of the latter. Johnson also rebuked the employees for hav- ing become connected with the Union without letting him "know anything." Wood told the employees that they were permitting Goidel to "slick-tongue" them into "something [they] didn't know what [they were] getting into," and urged them to forget the Union. He warned the employees further that if any of them were caught talking about the Union on the job, they would be dis- T According to Wood's testimony, It Is the practice for the field employees to begin return- ing to the warehouse at about 4 or 4: 30 p. m., and to wait around for quitting time, which is at 5 p. m. Sometimes, according to Wood, there Is work around the warehouse for the employees to do until quitting time. 8 Based on the testimony of Goidel, Taylor, and Estes, which I credit. Goidel testified that Wood "proceeded to cuss out" the employees, saying that they were "not off duty," and he could "fire every damn one of them for talking to" Goidel. Taylor and Estes testi- fied that Wood remarked that he could fire the employees for talking to that "black-headed s-of-a-b-." Wood denied he so referred to Goidel and even denied that Taylor and Estes were present ; he further testified that he had simply ordered the men to "get your- self back to work," and had said that "we are not going to have any talking about labor union while on working hours." Another witness, Nunnelly, who testified that he did not hear all that was said on the occasion in question, stated that he only heard Wood order the men back to work until their working hours were over. 0 Based on the undenied, credited testimony of Estes. Johnson admitted that during the same conversation with Estes he had "probably" asked him who attended the meetings of the Union, and that he was "quite sure" he had reported to Manager Wood on his talk with Estes. I so find. 10 Based on the undenied, credited testimony of Nunnelly. The latter testified that this conversation took place about 3 or 4 weeks before August 25, 1950, when he left the Respondent's employ. CULLMAN ELECTRIC COOPERATIVE ,, 761 charged , and remarked that any employee could be discharged "for the way [he parted his] hair."" ; On or about Friday, June 30, 1950, Manager Wood held another meeting of the employees on the Respondent's premises. He told them in substance that,the Union had demanded recognition, claiming to represent a majority of the em- ployees; that many of the employees had since informed him that they wished to withdraw from the Union ; and that he was desirous of ascertaining the wishes of the employees with respect to this matter before the employees left for their vacations, which were scheduled to commence the following week. Wood directed those employees who wished to repudiate the Union to rise, and the others to remain seated. All the employees except three (Taylor, Estes and one other) arose. Thereupon Wood announced that apparently the employees did not desire to be represented by the Union and he would not have union repre- sentative Goidel appear at a meeting of the Respondent's board of directors 12 About a half-hour after this vote was taken, Wood told employee Taylor, "you might as well forget about the Union because it isn't coming in." 18 During the month of August 1950, the Union scheduled two meetings for the Respondent's employees, which were to be held in the county courthouse in Cull- man. The second of these meetings was advertised to take place on the evening of Monday, August 28; the first about 2 or 3 weeks before that date. The first meeting at the courthouse was attended by approximately 15-20 employees, and was addressed by the Union's attorneys on the general subject of organized labor and the functioning of the National Labor Relations Act. Manager Wood at= tended this meeting, leaving after the attorney's finished their talks. According to Wood's uncontradicted testimony, which I credit, he had been invited by sev- eral of the Respondent's employees to attend the meeting, and he did so without any objection to his presence being expressed by anyone. The second union meeting, which, like the first, was advertised by a notice posted on the Respondent's bulletin board, did not actually take place, since only employees Taylor and Estes, in addition to Union Representative Goidel, appeared et the meeting place. While these three were standing in front of the courthouse "Based on the composite testimony of Taylor , Estes, W. It. Nunnelly, Manager Wood, R. M. Vest, J. W. Johnson, O. Q. Johnson , and Doyle Wilhite. I have based the above findings on a reconciliation of all their testimony . Taylor at one point testified that Wood had told the employees at this meeting that if he ( Wood ) knew who the leaders of the Union were, or who signed union cards, he would discharge them. Since I am convinced by the evidence as a whole that Wood , Instead, threatened to discharge any employees caught discussing the Union on the job, I am rejecting Taylor's testimony to the limited extent that it is in conflict with my findings to that effect . Wood, Vest, the two Johnsons, aad Wilhite denied generally that Wood had uttered any threats to discharge employees who joined or assisted the Union. To the extent that these denials are inconsistent with my above findings, I do not credit them. Nunnelly's demeanor on the witness stand, and the cold record of his testimony in the transcript, both revealed a reluctance on his part to give any testimony against the Respondent. I am constrained, therefore, to give great weight to his testimony that Wood had made the remark that it was within his power to discharge any employee "for the way he parted his hair " 12 Based on the testimony of Taylor, Estes, James W. Johnson, Odle Johnson, Doyle Wilhite, and Manager Wood. The testimony of all the witnesses as to what occurred at this meeting is in substantial agreement , although there was some conflict , which I do not deem to be significant, as to how Wood formulated the question on which the employees were to vote. Some of the witnesses understood the question to be whether the employees wished to repudiate the Union ; others, whether or not they wished to have Goidel Invited to a meeting of the board of directors to present the demand for recognition of the Union. It is clear, in any event, that the standing vote taken by Wood did require the employees to express, openly their individual desires as to whether or not the Union should continue to represent them. 13 Based on Taylor's undenied testimony, which I credit. 762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD shortly before the time the meeting was scheduled to begin, Manager Wood drove past the courthouse in one of the Respondent's trucks, and then circled around the block two or three times, passing by the entrance of the courthouse in the same direction each time." On June 29, 1950, 3 days after demanding recognition of the Respondent, the Union filed with the Board a petition for certification as collective bargaining representative of the Respondent's employees (Case No. 10-RC-976). Following that date, the parties entered into a consent election agreement, and an election was conducted by agents of the Board on August 29, 1950. It is stipulated that 6 of the employees voted for representation by the Union and 26 voted against. Employee Lawson Taylor acted as the Union's official observer at the aforesaid election. About a half-hour after this election, while Taylor and Superintendent Johnson were driving in a company truck to perform some work, Johnson told Taylor that in view of the results of the election he (Taylor) "might as well stop canvassing for the Union." Taylor asserted that he "was not through with it and . . . was still as much for the Union as ever." Johnson then told Taylor that he "might as well start looking for another job," that Taylor was "not wanted there." 16 B. Conclusions as to interference, 7estraint, and coercion When the Respondent suspected that some union might attempt to organize its employees, even before any such attempt actually was initiated, it began, through Manager Wood and Superintendent of Operations Johnson, to carry on a campaign designed to forestall the unionization of its employees. That cam- paign bore two aspects : the first consisted of communicating to the employees the Respondent's opposition to union organization, and of seeking to persuade them that it was to their advantage to remain unorganized ; the second, of prying into the details of the employees' organizational efforts through inter- rogation and surveillance, interfering with the union activities of the employees by promulgating and enforcing a discriminatory no-discussion rule, making veiled threats that employees who supported the Union might be discharged, and requiring the employees by means of a standing vote to reveal their attitude towards the Union. Insofar as the Respondent's efforts to combat the Union were restricted to the expression of views, arguments, and opinions, without including therein any threats of reprisal or promises of benefit, they did not, of course, constitute violations of the Act, for such expressions are protected both by the provisions of Section 8 (c) of the Act, and the constitutional priv- ilege of free speech. Some of the Respondent's antiunion activities, however, exceeded the bounds of these protections; they are discussed below. At the first meeting of the Respondent's employees addressed by Manager Wood on the subject of unionism, during May 1950, Wood, in addition to ex- 14 Based on the undenied, credited testimony of Goidel, Taylor, and Estes . Wood admitted driving past the courthouse on the occasion in question , and seeing Estes standing in front of the building. He testified further that he may even have circled around the block several times, but did not recollect why he did so, if he did, or what the purpose of his driving past the courthouse was on that particular evening. Wood explained that he frequently had occasion to drive on that route in the ordinary course of his comings and goings, and that at times he might find it necessary to retrace his route, such as to return to his office to pick up something he had forgotten to take home, or the like. He denied that his purpose in driving past the courthouse that night was to spy on the meeting of the Union. 15 Based on the testimony of Taylor, which I credit. Johnson denied generally that at any time in talking to Taylor he had referred to "the Cooperative firing him because he belonged to a union , or was in union activities " To the extent that this general denial is in conflict with the above-quoted testimony of Taylor, I do not credit it. CULLMAN ELECTRIC COOPERATIVE 763 pressing his opposition to the advent of a union, announced that any employee caught discussing the subject of unions during working hours would be subject to the penalty of discharge. On, June 26, 1950, when some of the Respondent's employees, stepped outside the Respondent's premises, after completing their day's work, but before their official quitting time, to inquire of Union Repre- sentative Goidel how the Respondent had received the Union' s_ request for recognition, Wood angrily ordered them to return to the Respondent' s premises, and warned them that they could be discharged for talking to Goidel during working hours. The Respondent's rule against discussion of unionism during working hours was reiterated by Wood,at the meeting of employees held a day or two later, this time reinforced not only by the warning that anyone caught violating the rule would he discharged, but also by the remark that the Respond- ent could discharge any employee, for any reason, including the Respondent's dislike of the way such employee "parted his hair." Wood testified that be promulgated the rule because the subject of union organization is a controversial one, and he was desirous of preventing disruption of the Respondent's oper- ations by prohibiting the employees from engaging in such discussions when they were at work. If that were the real motive and effect of the rule as announced and enforced by the Respondent, the Respondent would have been clearly within its rights in establishing and applying it. The Board has rec- ognized in its decisions that working time is for work, and that the Act does not prevent an employer from promulgating and enforcing reasonable rules govern- ing the conduct of employees during working hours 36 I am persuaded by the evidence in this case, however, that the Respondent's announcement and enforcement of the no-discussion rule was neither motivated by a bona fide desire to prevent disruption of its operations by prohibiting con- troversial discussions during working hours, nor that the promulgation and enforcement of the said rule had that effect. On the contrary, even after the announcement of the rule, the Respondent's own officials and supervisors engaged in antiunion activities and discussions during working hours, as witness the various meetings held during working hours as part of the Respondent's antiunion campaign, Superintendent Johnson's interrogation of employee Nunnelly about union affairs during working hours, during which Nunnelly himself called John- son's attention to the rule in an effort to avoid answering his questions, and Johnson's conversation with Taylor during working hours on the day of the Board-conducted election, in which he urged Taylor to cease his efforts on behalf of the Union. Moreover, the Respondent announced the no-discussion rule simul- taneously with its discovery that union activity had been carried on among em- ployees of other enterprises in the vicinity similar to its own; the announcement was made at a meeting which marked the beginning of the Respondent's antiunion campaign. This, coupled with the complete absence of any evidence in the record that union discussions on the part of the Respondent's employees had interfered with their work or threatened to do so, tends to negate the Respondent's conten- tion that the promulgation of the rule was occasioned by any necessity or desire to avoid disruption of work rather than by an intention to interfere with and impede the organizational efforts of its employees. In addition, as uncontradicted evidence in the record reveals, and I find, the Respondent's employees customarily and openly engaged in discussion during working hours of all sorts of subjects, including politics, sports, and many others, without in any way being restricted by the Respondent or its supervisors from doing so. With regard to the Respond- ent's enforcement of the no-discussion rule, it is significant that it was enforced 16 Peyton Packing Company, Inc., 49 NLTtB 828, 843, May Department Stores Company, 59 NLRB 976, 980-981. 764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD only as applying to prounion discussion or activity, while antiunion discussions, as has been noted above, were not only sanctioned by the Respondent during working hours, but carried on by its own representatives. On the occasion when the employees were forcefully instructed by Manager Wood to desist from engaging in conversation with Union Representative Goidel, these employees had returned to the Respondent' s premises after completing their day's work in the field, and the said conversation occurred during the short period while the employees were waiting around the premises to be dismissed for the day. There is nothing in the record to indicate that the employees were neglecting their work by talking to Goidel, although Manager Wood testified generally that "at times" the Respondent found work for the employees to do around the warehouse during the period between their return from the field and the official quiting hour." Under all these circumstances I am convinced, and find, that the Respondent announced and enforced its rule against discussing the subject of unions during working hours for the discriminatory purpose of impeding any attempts by a union to organize its employees ; that the promulgation and enforcement of the said rule did not bear any reasonable relationship to the efficient operations of its business ; and that the necessary effect of the promulgation and enforcement of the rule, in the circumstances of this case, was to interfere with, restrain, and coerce the Respondent's employees in the exercise of their rights under Section 7 of the Act, in violation of Section 8 (a) (1) thereof.18 On June 26 or 27, 1950, Superintendent Johnson, as has been set forth above, questioned employee Estes as to whether the latter had signed a union applica- tion card, how many other employees had signed such cards, and who had at- tended the meetings of the Union. Johnson admittedly reported on this con- versation to Manager Wood. At about the same time, Johnson also interrogated employee Nunnelly during working hours with regard to the latter's attitude towards the Union. Such interrogation by an employer of an employee, es- pecially by an employer who has made plain his opposition to the organization of his employees, necessarily has the effect of intimidating the employees from exercising freely their self-organizational rights under the Act, and is not pro- tected by the employer's right to express his views, arguments, or opinions, The Board has consistently held that such interrogation constitutes, per se, a violation of Section 8 (a) (1) of the Act. I find that by Johnson's above-de- scribed questioning of Estes and Nunnelly the Respondent interfered with, re- strained, and coerced its employees in the exercise of their statutory rights, thereby engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act.19 Also on June 26 or 27, 1950, Manager Wood, in addressing the Respondent's employees, coupled to his antiunion speech a warning that the Respondent had the power to discharge any employee "for the way he parted his hair." It hardly requires any laboring of the point to make it plain that such a remark, made in the context of an address stressing the employer's opposition to the unionization of his employees, and under circumstances where the employer has "It is reasonable to infer from all the circumstances surrounding the Goidel incident that if the employees had stepped off the Respondent's premises for a few minutes on that occasion for any other purpose except to pursue their interest in the Union, no objection would have been raised thereto. I conclude and find that Manager Wood ordered the employees to return at once to the Respondent's premises, under penalty of discharge if they disobeyed these instructions, only because the employees were speaking to a union representative. 18 Cf. Standard-Coosa-Thatcher Company, 85 NLRB 1358, 1364; W. C. Nabors Company, 89 NLRB 538, 566; Allen-Morrison Sign Co, Inc, 79 NLRB 904, 917; Hershey Metal Products Company, 76 NLRB 695, 696; Macon Textsles, Inc., 80 NLRB 1525, 1527. 39 Standard-Coosa-Thatcher Company, supra, and cases therein cited. CULLMAN ELECTRIC COOPERATIVE 765 actively questioned employees about.' their union activities and sympathies, amounts to nothing less than a thins veiled threat that any employee who de- fied the employer's exhortations to refrain from supporting the Union might be discharged by the employer on any convenient pretext. Of a kind with Wood's oblique threat is the statement made to employee Taylor by Superintendent Johnson immediately following the election on August 29. The suggestion that Taylor might as well start looking for another job because he was not wanted in the Respondent's employ, made immediately following Johnson's unsuccessful attempt to induce Taylor to renounce his union activities, can be interpreted only as a threat that Taylor would be discharged for his allegiance to the Union. It is an established principle that an employer violates the explicit language and intent of the Act when he threatens economic reprisal against prounion em- ployees. What an employer may not say bluntly, he may not communicate to his employees by indirection or innuendo. I conclude and find that the Re- spondent, by the above-quoted remarks of Manager Wood and Superintendent Johnson, committed unfair labor practices within the meaning of Section 8 (a) (1) of the Act. The standing vote conducted by Manager Wood among the Respondent's em- ployees on June 30, 1950, whereby those employees who wished to repudiate the Union were instructed to rise, and those who still wished to be represented by the Union were told to remain seated, has been described above. Such employer- conducted polls have been consistently held to constitute an illegal infringement on the rights of employees which are protected by the Act, even where the employer, contrary to the facts herein found, allowed the employees to express their preference by a secret ballot. To permit employers to derogate to them- selves the function of ascertaining the wishes of their employees with respect to representation for purposes of collective bargaining, would, for obvious rea- sons, make a mockery of the right of employees freely to designate their own bargaining representatives. For an avowedly antiunion employer such as the Respondent to require its employees openly to take a stand for or against the Union at a meeting conducted by the employer, amounts, in addition, to a form of interrogation such as is proscribed by the Act. I find that by conducting the poll as above-described, the Respondent interfered with, restrained, and coerced its employees in the exercise of their rights under the Act, in violation of Section 8 (a) (1) thereof.'" There remain for consideration the contentions of the parties with respect to the alleged surveillance of union meetings by Manager Wood. The first of these meetings, held in early August 1950 at the courthouse in Cullman, was attended by Wood. Under ordinary circumstances, the mere attendance by a representa- tive of management, at a meeting of employees held in the course of their own concerted activities, has the effect of restraining and coercing them in the exer- cise of the right to carry on such activities. Consequently, the Act has been interpreted so as to forbid employers or their representatives from placing employees under restraint by intruding at such meetings. That principle, sound though it is, must be reasonably applied, and I am of the opinion that it would not effectuate the purposes of the Act to base a finding of unfair labor practices on Wood's conduct in attending the Union's first meeting at the courthouse. It is undisputed that Wood was invited by some of the employees to attend the meeting. Further, he was permitted to remain in attendance without objection. Moreover, since the meeting was devoted only to a general discussion of the history and rights of labor by the Union's attorneys, it could hardly be said that 20 Cf. Stainless Ware Company of America, 87 NLRB 138, 153, 155 ; Stocker Mfg. Co., 86 NLRB 666, 667 ; Granite State Machine Co ., Inc., 80 NLRB 79, 101. 766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Wood's attendance served in any way to inhibit the activities there carried on. I shall therefore make no finding that Wood's attendance at the first meeting constituted an unfair labor practice. - I am persuaded, however, that the situation is different with regard to Wood's conduct in connection with the meeting of the Union scheduled to be held on the night before the Board election, namely, on August 28, 1950. We have seen that the Respondent manifested its opposition to the Union, and made active efforts to ascertain what progress it was making in enlisting the Respondent's employees. Moreover, through the threatening remarks made by Wood and Johnson, and the promulgation and enforcement of a discriminatory rule against union discussion, the Respondent had exhibited its determination to impede the Union's organizational activities. Wood's circling of the scene of the Union's scheduled meeting on August 28, in the light of these facts, impels the conclusion, in the absence of a reasonable explanation to the contrary, that he deliberately went past the meeting place of the Union several times for either or both of the following reasons : to ascertain which employees, or how many, were coming to the meeting, and to restrain and coerce employees, by showing himself at the scene, from attending it. In any,event, Wood's presence at the scene, at the time and in the manner in which he was there, necessarily would have a restraining and coercive effect upon the employees. There is no showing that Wood was asked to attend this meeting of the Union. It may be true, as Woods testified, that it was not unusual for him to drive on that particular route in the ordinary course of his day's activities. However, I am not persuaded that his ordinary comings and goings would account for his circling around the courthouse several times, without interruptions, at the precise time that employees were standing near the entrance of the building in anticipation of a scheduled meeting of the Union. Although Wood remembered driving past the courthouse, and seeing employee Estes there, he failed to explain what led him, on that occasion, to circle around the scene several times as he did. I conclude and find, on the basis of the record as a whole, that Wood drove past the scene several times to keep the meeting place of the Union under surveillance, and that his conduct in so doing necessarily interfered with, restrained, and coerced the employees in the exercise of their rights under the Act. I further find that the Respondent thereby committed unfair labor practices within the meaning of Section 8 (a) (1) of the Act 21 C. The alleged discriminatory discharges of Lawson Taylor and Elbert Estes Taylor.entered the Respondent's employ in November 1947, as a trainee under the Veterans' Training Program, at a starting rate of pay of 60 cents per hour. His employment was terminated as of September 6, 1950, at which time he was working for the Respondent as a "Class B lineman" at a pay rate of 90 cents per hour. The complaint alleges that Taylor's employment was terminated by the Re- spondent's action in discharging him because of his union affiliation and activity. In its answer the Respondent denies that it discharged Taylor, and alleges affirmatively that the latter resigned from its employ. Estes was in the Respondent's employ from December 1945 until September 6, 1950, when he was admittedly discharged. He started as a "right-of-way" employee at 50 cents per hour, and was engaged in the same kind of work at the time of his discharge, but by that time he had advanced to a wage rate of 85 cents per hour. 21 See : H & H Manufacturing Company, Inc., 87 NLRB 1373, 1375, 1388-1389 9 CULLMAN ELECTRIC COOPERATIVE 767 Both Taylor and Estes were absent from work , with the permission of Manager Wood, on Friday, September 1, 1950. Taylor had requested the day off, which was granted by Wood , for the purpose of going to Birmingham , where as he testi- fied without contradiction, and I find, he received some inoculations in connec- tion with his membership in the Naval Reserve R2 Estes received permission from Manager Wood to take the day off to permit him to repair the roof of his house. According to Estes' undenied testimony, which I credit, he completed the afore- said repairs before noon of Friday At about that time, Taylor, having returned from Birmingham , came to Estes ' house and suggested they drive to Huntsville, Alabama, in order to file applications for jobs with the electric department of the said municipality, which they had heard were open. Acting on this suggestion, Taylor and Estes drove to Huntsville, arriving there at or shortly before noon, and filed applications for the positions in question.23 On Tuesday, September 5, Assistant Manager George B. Terry and Superin- tendent Johnson came to the place where Estes was working and, while Johnson waited at a point some distance away, Terry engaged Estes in conversation. ,Terry said to Estes, "It looks like you are not satisfied with your job. What about just quitting?" After some further conversation, Estes informed Terry that lie would not quit, and said, "If you want me to quit, just fire me." Terry answered, "No, I don't want to do that," and then left, saying, "Well, I am going over to see Taylor." 24 The next morning, Wednesday. September 6, when Estes reported for work, Superintendent Johnson told him that Terry wished to see him. Terry informed Estes that he would "have to fire" him, that Terry had been instructed by Man- ager Wood to discharge Estes and Taylor on the previous Monday, but that he hated to do it and had "put it off until now." When Estes pressed Terry for some reason for his discharge, the latter stated that he did not know the reason, that he was satisfied with the work of Estes and Taylor ; and that he would 22 According to Taylor's undented , credited testimony , he had taken time off , with per- mission, on about five previous occasions in order to receive a series of inoculations which were required as a result of his membership in the reserve forces of the Navy. On each of these occasions he was absent from work the whole day. 29 Based on the credited testimony of Taylor and Estes There is some conflict between the testimony of Taylor and Nunnelly as to the time of day when Taylor and Estes arrived at their destination , but I deem this conflict to be of little significance . The evidence as a whole convinces me that Estes and Taylor came to Huntsville sometime around noon. 14 Based on the credited testimony of Estes Terry admitted that during this conversa- tion he "probably told [Estes ] it looked like he wasn 't satisfied with his work ." Terry also testified that he did not recollect whether or not he suggested that Estes quit his lob with the Respondent . Terry and Johnson testified that on the occasion in question, Terry first questioned Estes as to whether or not be had been to Huntsville the previous Friday applying for another job; that Estes denied having been there ; that Johnson then confronted Estes with the statement that the Respondent had ascertained that Estes had been to Huntsville and had filed an application for a job there , whereupon Estes defiantly admitted that he had . Estes denied that either Terry or Johnson on this occasion said anything to him about having been to Huntsville . Estes impressed me as a more reliable witness than either Terry or Johnson . Moreover , both Estes and Terry agreed In their testimony that Estes was not discharged on the occasion of this conversation, but on the next day. Terry testified further that he had been Instructed by Manager Wood to ascertain whether Estes had been to Huntsville on the day he took the day off to fix his roof, and if he found that Estes had made the said trip , to discharge him. It is reasonable to believe that if, in fact, Terry and Johnson had confronted Estes with an accusation that he had been to Huntsville, and had obtained a confession from him, as they claimed , they would have discharged Estes on the spot. kc 768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD be willing to help them obtain other employment, even to the extent of driving them about in his car to look for work Y It is undisputed that on Tuesday, September 5, after talking to Estes, As- sistant Manager Terry drove to the place where Taylor's crew was at work and asked to speak to Taylor. According to the testimony of Taylor, the following discussion took place: Terry informed Taylor that he (Terry) had been in- structed by Manager Wood to discharge Estes and Taylor on Monday ; that he hated to do this, and had delayed carrying out the instructions until then ; but that, like everybody else, he had his orders to carry out and therefore was forced to "come and 'say it." Taylor then told Terry that he had already informed Superintendent Johnson of his intention to quit his job on the following Friday, whereupon Terry 'asked him whether he would not quit at once. To this Taylor replied, "No, I have my time turned in for Friday. If you want to fire me now, go ahead." Terry answered, "0. K., come by in the morning and pick up your check." 28 Terry's account of his conversation with Taylor is in conflict with the foregoing. According to Terry, he had already been informed of Taylor's intention to quit at the time he opened the conversation with Taylor, and he simply remarked to him that Foreman Vest and Superintendent Johnson had told him of Taylor's plans, whereupon Taylor affirmed the fact that he was quitting on Friday. Terry further testified that after this opening exchange, he engaged Taylor in conversation about "some bad debts and things, and try to help him getting straightened out, and I didn't want him to leave feeling bad, if there was anything the matter, and if I could help him I would be glad to, and he became mad. . . ." Terry's testimony continues : "Well, he told me if it was satisfactory with me it would be with him, he would just call in the next morning ... and pick up his check." At that point, Terry further testified, he told Taylor that if the latter wished to work "on until Friday, it was perfectly all right," whereupon Taylor insisted on picking up his check the next morning (Wednesday). It is undisputed that Taylor's employment was terminated the next morning, when he received his final pay check. Insofar as Taylor's termination is concerned, the only significant factual issue which results from the conflicts in testimony above summarized, is whether the Respondent insisted on discharging Taylor as of Wednesday, Sep- tember 6, instead of allowing him to leave its employ voluntarily on Friday, September 8, or whether Taylor insisted on being paid off on Wednesday, Septem- ber 6, as Terry testified. Taylor admittedly had announced his intention of quitting on Friday, and as he himself testified, he told Terry when the latter approached him on Tuesday that he was quitting on Friday. It is likewise clear from the testimony of Manager Wood that Wood had instructed Terry on the preceding Friday, September 1, to discharge both Estes and Taylor if it were "Based on Estes' credited testimony . Terry testified that on the day he discharged Estes he told the latter that he was being discharged "due to the falsehood about the trip to Huntsville, and also about some complaints that had come in from the other employees, and anything further, that he would have to talk to Mr. Wood about." I do not credit this testimony. 26 Taylor had admittedly made a statement to Superintendent Johnson before the above- described conversation with Terry, earlier the same day, that he was quitting his job with the Respondent the following Friday. Johnson's testimony as to when Taylor first informed him of his intention to quit was confused, but at one point he testified that on the Tuesday prior to the day Taylor's employment was terminated, Taylor had informed him that he would not "be back the following Monday." An employee in Taylor' s crew, Odie Q. Johnson, also testified with respect to the conversation between Superintendent Johnson and Taylor, and from his description, it would appear that on Tuesday, Septem- ber 5, Taylor told Johnson that he was going to quit his job on the following Friday. I conclude and find that on Tuesday, September 5, Taylor told Superintendent Johnson that lie was quitting the Respondent's employ on the following Friday. CULLMAN ELECTRIC COOPERATIVE, 769 ascertained that they had made the trip to, Huntsville on, that day. Conse- quently, this case presents a situation where the Respondent had determined to discharge Taylor prior to its discovery that he intended definitely to quit. Assuming, as I do, that the Respondent was anxious to rid itself of Taylor because of his stubborn adherence to the Union, I find it difficult to believe that Terry would not readily have accepted Taylor's offer to quit the Respondent's employ on Friday, September 8, but instead would have insisted that he be dis- charged as of Wednesday, September 6. This is especially incredible in view of Terry's attempt to induce Estes to quit, immediately preceding his discussion with Taylor. I think it probable that even if Terry had determined, after unsuccessfully asking Estes to quit, that it was necessary to discharge both men in order to get rid of them, he would promptly have seized upon Taylor's voluntary offer to quit on the following Friday when the latter announced that intent. For these reasons I am unable to credit Taylor's testimony that Terry insisted on terminating his employment as of Wednesday, September 6, instead of permitting him to work through Friday. I conclude and find, therefore, that Taylor quit his employment on Tnesda^. September 5, his termination to take erect as of the end of that day. In this connection , the General Counsel contends that even if Taylor did quit his employment, the circumstances are such that his quitting should not be deemed to have been a voluntary act, but that, in fact, he was forced out of the Respondent's employment, and his termination should be held to have con- stituted a "constructive discharge." I can conceive of circumstances where an antiunion employer can make a prounion employee's job so untenable that the employee is forced to quit, but I am not convinced that in this case Taylor was constructively discharged within the meaning of the Act. I am persuadew that the Respondent demonstrated an intent to rid itself of Estes and Taylor as employees because of their affiliation with the Union. It seems equally clear that Taylor, like Estes, would have been discharged had he not quit. But unless the employer in such a situation does something more than manifest his intention to discharge the employee, no case of discriminatory discharge has been established until the discharge is effectuated. , Had the Respondent here have taken some affirmative action, such as assignment of Taylor to odious tasks, or discriminatory treatment of Taylor with respect to privileges, or the like, the argument might be valid that it would be unreasonable to require Taylor to have submitted to such discriminatory treatment in order to retain his right to a remedy under the Act. In the absence of such a showing, it is my conclusion that the General Counsel has railed to establish a case of constructive discharge of Taylor. I have already indicated that on the basis of the record as a whole 1 view the discharge of Estes as having been discriminatorily motivated. The Re- spondent contends that it discharged Estes for two reasons: (1) That he had been for some time previous to his discharge a, generally unsatisfactory em- ployee; (2) because he requested a day off on Friday, September 1, in order to repair his house, and then utilized that day instead for the purpose of making a trip to Huntsville to apply for another job, following which he lied to the Respondent by denying that he had done so. In support of its contention that Estes was an unsatisfactory employee, the Respondent adduced the following testimony : Assistant Manager Terry testi- fied that he had received some complaints from Foreman Shaw, who was in charge of the service truck on which Estes worked as a helper, to the effect that Estes was a "trouble-maker among the men . . . and a tale-bearer," also that Estes',"work was not too satisfactory because he didn't seem to want to do anything. He just taken the attitude that all he wanted was pay day." 770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Terry also testified that on some unspecified occasion when it was proposed to transfer Estes to Foreman Vest as a helper , Vest "refused to work him," and that some unidentified employees had complained against Estes to Terry. Terry testified that he had spoken to Estes about these complaints , and had "told him he should try to apply himself on the job and make a better hand." He could not recall a specific occasion when he had spoken to Estes on that subject, could not recall how long before Estes' discharge he had made these comments to him, but could only remember that he had spoken to him "about twice ...' probably several months apart." At a later point in his testimony, Terry as- serted that Shaw had asked him "time and time again to transfer [Estes] to some other work." Terry elaborated his testimony under later questioning by stating that he received intermittent complaints against Estes for the period of about a year during which Estes was last in the Respondent's employ ; that he could not recall how long before the date of Estes' discharge he had made a direct criticism to Estes about the latter's work ; that Estes' work did not, in any event , show any improvement since that last time ; that he (Terry) had then resorted to asking Estes' foreman to prod him to improve his work; but that he (Terry ) had never sought to obtain any further reports from the fore-' man as to whether any such efforts to induce Estes to mend his ways had been successful. Superintendent Johnson testified : "As far as Estes' work , when you speak of actual, physical work, it was all right . There was nothing wrong with his work. His mental attitude became bad. His cooperative spirit just disappeared com- pletely . He adopted a rather independent attitude and as best I could tell did not have the job 's interest at heart." Johnson also testified that Shaw, Estes' foreman, had "quite regularly," in fact, every few days, voiced com- plaints against Estes to Johnson, to the general effect that Estes was a disrup- tive influence because he pried into the rates of pay, of other employees, and carried tales from one person to another with respect to their pay rates, and the like. On one occasion, Johnson testified , he learned that Estes had made an unauthorized examination of the records of the Respondent to ascertain its rates of pay for other employees . No direct criticism of this action was made to Estes, according to Johnson , but a general notice to all employees was posted, advising them that they were not to tamper with office records or equipment. Doyle Wilhite, one of the Respondent 's nonsupervisory employees , testified that he had observed Estes at times when they were working at the same site, and that Estes "was causing right smart of friction on the gang . . . just talking from one to another. Trying to pick up what one said and then go to another." Manager Wood testified , in sum, that he had received many complaints about Estes, mostly to the effect that he was a tale-bearer , and that he was not coop- erative. Upon a consideration of the testimony given with respect to Estes' alleged deficiencies as an employee, I am convinced that it consists largely of an exag- gerated summary of faults which in reality played no part in the Respondent's determination to discharge Estes, but which are now brought forward in retro- spect to buttress the Respondent 's defense . The testimony , as can be seen from the summary thereof set forth above, was for the most part extremely vague, indicating that the witnesses had difficulty in recalling any specific exhibitions of Estes' shortcomings which made any definite impression on the Respondent's supervisors at the time they occurred . Moreover, the general criticisms made of Estes as a "trouble-maker," "tale-bearer." malcontent," and the like are of a nature so easily equated by an antiunion employer with his resentment of the Iegitiniatpaetivities of a prounion employee, that I am inclined to believe that CULLMAN ELECTRIC COOPERATIVE 771 to a great extent they consist of a rationalization or articulation of the Re- spondent's demonstrated hostility against Estes based on his persistent support of the union organizational campaign . The mere fact that Estes was kept in the Respondent's employ for about a year after he allegedly became an unsatis- factory employee , and that no discipline was ever taken against him, nor any warning ever issued to him that he would be discharged if his work did not improve, is in itself indicative of the fact that, on the whole, apart from his adherence to the Union, Estes was considered a satisfactory employee. This is not to imply that he was necessarily free of faults ; the evidence does indicate that he probably irritated some of his supervisors and fellow -employees at times. However, the evidence falls far short of convincing me that Estes, whose actual workmanship was concededly satisfactory to the Respondent, was so objectionable in other ways that the Respondent would have discharged him on the ground that he was generally unsatisfactory as an employee. The testimony offered by the Respondent in support of the contention that Estes was discharged because he had requested and been granted a day off from work on false pretenses , may be summed up as follows : 2' On Thursday , August 31, 10,50, the day before Estes took the day off, there had been a storm which damaged some of the Respondent 's power lines, thus creating a need for all available employees to remain on the job. On that Thursday , Estes told Manager Wood that the roof of his house needed repairs, and asked Wood for permission to take a day off from work on the next day ( Friday, September 1) in order to make these repairs . Wood granted his request. On Friday, Wood was told that Estes, accompanied by Taylor, had been in Huntsville during the day and had there filed an application for a job. He then called Terry and instructed the latter to discharge Taylor and Estes if he could establish that they had indeed been in Huntsville . Terry called the man with whom the job applications had been filed, satisfied himself that Estes and Taylor had in fact been in Huntsville on Friday, and then carried out his instructions by discharging Estes?" Estes testified without contradiction, and I find, that on Friday, September 1, he actually made the repairs on the roof of his house , and had completed them during the forenoon of that day. It was only after the said repairs had been completed that he went to Huntsville, where he and Taylor made job applications and later did some fishing According to the testimony of Taylor and Estes, which I credit, they had been planning to drive to Huntsville on Saturday, Sep- tember 2, to inquire about the job openings there, but decided to make the trip on Friday after they got together late that morning and found that both of them had completed taking care of the business for which they had taken the day off. There is nothing in the record to indicate that either or both of them knew in advance how much of Friday would be taken up by the business to which they had to attend ; there is no proof that they deliberately asked for a whole day off knowing in advance that they would be in a position to return to work for half a day. Nor is there any evidence that the Respondent requested either of them to return to work for part of the clay on Friday if they were able to do so. Assuming that there had been a storm on Thursday which blew down some of the Respondent's lines, as I do, the situation must have been gotten pretty well in hand during Thursday ; 29 otherwise it is reasonable to expect that Manager Wood 27I have aheady considered and rejected the contention that Estes was questioned about his trip to Huntsville by Assistant Manager Terry and Superintendent Johnson on Tues- day September 5, and that he lied to them about it. zs Testimony of Manager Wood, Assistant Manager Terry , and Superintendent Johnson 20 Assistant Manager Terry testified • "We had a storm on Thursday and I 'll say every- body went , to work, approximately around from-5 • 00 toA;*,00 o'clock, and we worked all day and I went home about 10 • 00 o'clock that night and still the next morning started working again " 772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD would not have granted two badly needed employees the next day off. It is sig- nificant that, so far as the record shows, Wroood made no effort to dissuade Taylor or Estes from taking the day off on Friday, or to persuade them to postpone their business until a more convenient time for the Respondent. These facts impel the' conclusion that in Manager Wood's Judgment, the Respondent could spare these two employees from their work for the whole of Friday Wood himself, apparently, entertained no doubts of that, since, as the record shows, he granted the request for a day off to both Estes and Taylor without consulting any of his subordinate supervisors about the advisability of doing so. In all of the cir- cumstances, it can hardly be said, as the Respondent contends, that Estes falsified to the Respondent in requesting permission to be absent from work on Friday. Nor can it be said that the Respondent reasonably entertained the impression, after learning of Estes' trip to Huntsville, that Estes had lied about the matter when he asked for the day off. It would have been an easy matter to check on Estes' claim that he had, in fact, made repairs to his roof on Friday. In view of the flimsiness of the reasons advanced by the Respondent for discharging Estes, and in the light of all the evidence of the Respondent's hostility against the Union, and the threats made by the Respondent that it was in a position to seize upon any pretext in order to discharge prounion employees, and that an employee who refused to repudiate the Union should start looking for other employment, I am persuaded that in the case of Estes, who had not concealed from the Respondent his continued adherence to the Union even after most of the other employees had repudiated it, the Respondent did in fact seize upon Estes' trip to Huntsville as a pretext for discharging him, and that the real reason for his discharge was the Respondent's desire to rid its employ of those employees who seemed determined to continue their organizational efforts. On the basis of the record as a whole, I conclude and find that by discharging Estes on September 6, 19-50, and by failing and refusing at all times thereafter to reinstate him to its employ,30 the Respondent has discriminated against him with respect to his hire and tenure of employment, to discourage membership in the Union, and has thereby interfered with, restrained, and coerced its employees in the exercise of their rights as guaranteed by Section 7 of the Act, thereby engaging in unfair labor practices within the meaning of Section 8 (a) (3) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in Section III, above, occurring in connection with the operations of the Respondent described in Section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices affect- ing commerce, it will be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. 10 In its answer the Respondent denies that Estes at any time after his discharge applied for reinstatement, and contends that, therefore, no finding can be made that the Respond- ent has refused to reinstate him. It is well settled that where any employer discrimi- natorily discharges an employee under circumstances demonstrating the futility, of 'a request for reinstatement, the employee is under no obligation to make the vain gesture of applying for reinstatement in order to preserve his full, remedial rights under the Act. Although there is no showing in the record that Estes ever-made an application for CULLMAN ELECTRIC. COOPERATIVE' 773 .Having found that, the Respondent has discriminated in regard to the hire and tenure of employment of Elbert O. Estes, I will, recommend that, in order to effectuate the purposes and policies of the Act, the Respondent offer him immediate and full reinstatement to his former, or to a substantially equivalent position," without prejudice to his seniority and other rights and privileges. It will also be recommended that the Respondent make Estes whole for any loss of pay he may have suffered by reason of the Respondent's discrimination against him, by payment to him of a sum of money equal to the amount he would normally have earned as wages from the date of his discharge to the date of the Re- spondent's offer of reinstatement, less his net earnings during that period 33 Loss of pay shall be computed on the basis of each separate calendar quarter or portion thereof during the period from the Respondent's discriminatory action to the date of a proper offer of reinstatement. The quarterly periods, herein called quarters, shall begin with the first day of January, April, July, and Octo- ber. Loss of pay shall be determined by deducting from the sum equal to that which Estes would normally have earned for each such quarter or portion thereof, his net earnings, if any, in other employment during that period. Earnings in one particular quarter shall have no effect upon the back-pay liability for any other quarter 33 It will also be recommended that the Respond- ent, upon reasonable request, make available to the Board and its agents all payroll and other records pertinent to an analysis of the amounts due as back pay. It has also been found that the Respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed them by the Act, by threatening reprisals against employees who exercised those rights, by inter- rogating employees about their union affiliations and activities, by engaging in surveillance of a union meeting, by conducting an illegal poll of employees requir- ing them to reveal to the Respondent their attitude towards the Union, and by promulgating and enforcing a discriminatory rule against union discussion. In view of the above findings, I am convinced that the Respondent has demon- strated an intent generally to interfere with, restrain, and coerce its employees in the exercise of their rights under the Act, and that the commission of other unfair labor practices by the Respondent is reasonably to be anticipated from the Respondent's conduct in the past In order, therefore, to make effective the interdependent guarantees of Section 7 of the Act, to prevent a recurrence of unfair labor practices, and thereby minimize industrial strife which burdens and obstructs commerce, and thus effectuate the policies of the Act, I will recommend that the Respondent cease and desist from in any, manner infringing upon the rights guaranteed in Section 7 of the Act.34 Since I have found that the Respondent did not discharge Lawson Taylor, but that the latter quit his job in the Respondent's employ, I shall recommend that the complaint be dismissed insofar as it alleges that Taylor was discrimi- natorily discharged. reemployment, I am convinced that in the circumstances of this case it would have been futile for him to do so, and that Estes is entitled to the usual remedy of reinstatement and back pay Cf. The Red Rock Company, 84 NLRB 521, 529; Kelco Corporation, 79 NLRB 759, 795 31 In accordance with the Board 's consistent interpretation of the term , the expression "former or substantially equivalent position " is intended to mean "former position wherever possible and if such position is no longer in existence then to a substantially equivalent position." See: The Chase National Bank of the City of New York,.San Juan, Puerto Rico, Branch, 65 NLRB 827. 33 See : Crossett Lumber Co., 8 NLRB 440 s3 F. W. Woolworth Company, 90 NLRB 289. 34 See : May Department Stores v. N . L. R. B., 326 U. S. 376, affirming as modified 145 F. 2d 66 (C A. 8), enforcing 53 NLRB 1366. 215233-53-50 774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following : CONCLUSIONS OF LAW 1. Local Union 558, International Brotherhood of Electrical Workers, is a labor organization within the meaning of the Act. 2. By interfering with, restraining, and coercing its employees in the exer- cise of the rights guaranteed them in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 3. By discriminating in regard to the hire and tenure of employment' of Elbert O. Estes, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 ( a) (3) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 5. The Respondent did not commit unfair labor practices by discriminatorily discharging Lawson Taylor. [Recommendations omitted from publication in this volume.] NATIONAL CARBON COMPANY, DIVISION OF UNION CARBIDE AND CARBON CORPORATION and UNITED GAS, COKE AND CHEMICAL WORKERS OF AMERICA, CIO, PETITIONER. Case No. 8-RC-1316. June 17, 1952 Decision and Order ' Pursuant to a stipulation for certification upon consent election, an election by secret ballot was conducted on July 13, 1951, under the direction and supervision of the Regional Director for the Eighth Region, among the employees in the stipulated unit. Thereafter, a tally of ballots was furnished the parties, which showed the results to be inconclusive., Accordingly, a runoff election was conducted on August 1, 1951. Upon the completion of the runoff election, a tally of ballots was furnished the parties. The tally shows that of approxi- mately 1,462 eligible voters, 1,278 cast valid ballots, of which 637 were for, and 641 were against, the Petitioner. There were 3 challenged ballots. On August 3, 1951, the Petitioner filed a letter with the Regional Office stating, in general terms, that it wished to protest the Employer's conduct affecting the election results and that supporting evidence would be supplied on the Board's request? A copy of this letter was immediately served on the Employer by the Petitioner. 3 The tally of ballots showed that of approximately 1,479 eligible voters, 1 ,270 cast valid ballots, of which 611 were for the Petitioner , 36 were for other labor organizations, and 623 were against the participating labor organizations . There were 7 challenged ballots. No objections to this election were filed ' 2 The letter reads : "The United Gas, Coke and Chemical Workers of America, CIO, wish to protest the conduct of the Company affecting the results of the election held August 1 , 1951 , Case No . 8RC1316. Evidence supporting this protest will be forthcoming upon -the request- of the National' Labor Relations Board." 99 NLRB No. 117.